Case C-442/08: Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany
Date: 2008-10-06
Institutions: Court of Justice
Subjects: European Commission, Germany, Hungary, action for failure to fulfil an obligation, fine, motor vehicle

C 6/10

EN

Official Journal of the European Union

10.1.2009

Court of First Instance. That party had not in fact demonstrated
that it had an actual or potential economic interest which, in
itself, might warrant a law firm, acting on its own behalf,
having the capacity to bring legal proceedings for a declaration
of the invalidity of a trade mark for cosmetics. Community law
does not recognise actions brought in the absence of a private
individual or economic interest (actio popularis).

According to the appellant, to concede that a lawyer, acting on
its own behalf, may bring an application for removal from the
register of a trade mark is, on any view, incompatible with the
professional profile of a lawyer, as a member of the legal profes-
sion.

as

descriptive

By its second plea, the appellant challenges the finding of the
Court of First Instance that the trade mark COLOR EDITION is
under
falls
consequently
and
perceived
Article 7(1)(c) of Regulation No 40/94. That
interpretation
conflicts with the Court's case-law relating to the constituent
elements of the concept of a descriptive mark. Being able to
infer from a trade mark the protected goods and their character-
istics is not an adequate test. It is necessary to ascertain whether
the chosen terms,
taken individually as well as jointly, are
known and usually employed in the everyday language of the
relevant public.

(1) OJ 1994 L 11, p. 1.

Action brought on 6 October 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-442/08)

(2009/C 6/17)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Caeiros and B. Kotschy, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

— Declare that the Federal Republic of Germany has infringed
its obligations under Articles 2, 6, 9, 10 and 11 of Council
Regulation (EEC, Euratom) No 1552/89 of 29 May 1989

implementing Decision 88/376/EEC, Euratom on the system
of the Communities' own resources (1) or, as the case may
be, of Council Regulation (EC, Euratom) No 1150/2000 of
22 May 2000 implementing Decision 94/728/EC, Euratom
on the system of the Communities' own resources (2), by

— allowing tariff claims to become time-barred, irrespective
of the receipt of a mutual assistance sheet, and making a
late entry in the accounts of the own resources owed in
this connection;

— refusing to pay the accrued default interest;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

From 1994 onwards, motor vehicles
from Hungary were
imported into Germany within the framework of the preferen-
tial tariff treatment laid down in the EC-Hungary Europe Agree-
ment. By way of a mutual assistance sheet of 26 June 1998, the
European Anti-Fraud Office (OLAF) officially informed the
Member States that, at the end of their revision, the Hungarian
authorities revoked the declarations of origin for 58 006 vehi-
cles (including 19 123 vehicles for Germany). By way of a letter
of which the English version was delivered to the German
authorities on 13 July 1998 and the German translation on
18 August 1998, OLAF forwarded the documents and files
forming part of that mutual assistance sheet, including the letter
of 26 May 1998, by which the Hungarian authorities informed
OLAF of the results of the revision and pointed out that the
Hungarian manufacturer had brought an action before a
Hungarian court against the decisions of the Hungarian authori-
ties. By way of a further mutual assistance sheet of 27 October
1999, OLAF informed the Member States of the outcome of
those proceedings. As a result of
the
declarations of origin that became necessary following the judg-
ment of the Hungarian court, declarations of origin for 30 771
vehicles remained revoked on the ground of invalidity.

the re-assessment of

The results of a Commission mission in Germany regarding the
control of own resources and information provided by the
German authorities showed that the German authorities allowed
entitlements in the amount of EUR 408 735,35 for the import
of motor vehicles whose declarations of origin remained
revoked even after the re-assessment following the judgment of
the Hungarian court,
to become time-barred. Following a
request by the Commission, the own resources owed for those
time-barred tariff claims were made available by the German
in other words, after the
authorities on 31 October 2005,
in Regulation
expiry of
No 1552/89 (or, as the case may be, Regulation No 1150/2000);
however, the German authorities refused to pay default interest
in respect of the late entry of those own resources.

time-period provided

the

for

10.1.2009

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Official Journal of the European Union

C 6/11

The Commission bases the present action essentially on two
grounds, namely, first, the late entry of the own resources (in
the accounting ledger) and, second, the refusal to pay default
interest in respect of that late entry. According to the Commis-
sion, at the latest as of 18 August 1998 (the date by which the
documents and files forming part of the mutual assistance sheet
of 26 June 1998 had been sent out
languages), all
Member States were in a position to identify debtors and the
amount of the claim and therefore ought, from then onwards,
to have taken the necessary steps to collect the relevant entitle-
ments and to establish, and pay, the own resources connected
with it. Taking into consideration an appropriate time-limit of
the
the introduction of
three months
Commission took the position that all Member States which
failed to act are liable for the entitlements that were time-barred
from 18 November 1998 onwards.

such measures,

in all

for

the

own resources,

As regards the Commission's first plea in law, namely the late entry of
the
relevant provisions of Regulation
No 1552/89 (or, as the case may be, Regulation No 1150/2000)
and the case-law of the Court of Justice show that the Member
States are under an obligation to establish the own resources of
the Communities and that this obligation exists irrespective of
whether or not the entitlements have actually been entered in
the accounts, or, as the case may be, whether or not it was
possible to collect the entitlements from the debtor. In principle,
the incurrence of a customs debt gives the Communities a right
to the customary own resources connected to that customs
debt, and does so even where the entitlement was not entered
in the accounting ledgers or was not collected from the debtor
in an individual case. The moment at which the own resources
ought to be established is determined by the moment at which
the national customs authorities are in a position to calculate
the entitlement arising from a customs debt and to identify the
debtor.

The question as to which position is to be adopted by the
customs authorities of a Member State into which goods have
been imported accompanied by declarations of origin which,
following a revision, are revoked on the ground of invalidity
cannot be answered on the basis of the laws of the relevant
third country. Given that Protocol No 4 to the EC-Hungary
Association Agreement likewise does not contain provisions to
that effect, other sources of Community law have to be exam-
ined to determine what Member States have to do once they
have been informed of the results of a revision which raised
doubts as to the origin of the goods. Article 78(3) of Regulation
the
No 2913/92 provides that
Member States are to take the measures necessary to regularise
the situation, taking account of the new information available to
them. In the same way, the regulation requires Member States,
following the incurrence of a customs debt, to rapidly imple-
ment the procedure for collecting the debt, both during the first
phase of the procedure, which consists of entering the entitle-
ment in the accounts, and the phase during which the entitle-
ment is collected from the debtor.

the customs authorities of

Pursuant to Article 244 of Regulation No 2913/92, the lodging
of an appeal against a decision taken by the customs authorities
of Member States is not to cause implementation of that deci-
in exceptional circumstances.
sion to be suspended, except
Under normal circumstances, suspension of implementation is
to be subject to the existence or lodging of a security. Therefore,
in cases in which the incurrence of a customs debt results from

the revocation of the declarations of origin at the end of a revi-
sion, the fact that legal action has been brought cannot, in the
Commission's view, preclude the customs authorities of
the
importing Member State from (subsequently) collecting the enti-
tlements. Given that the goods were already brought into the
Community and that the court proceedings may take several
the collection of
years, such suspension could render
the
customs debt
the legal action were
if
dismissed.

far more difficult

Finally, as regards the Commission's second plea in law, namely the
refusal to pay default interest, Article 11 of Regulation No 1552/89
(or, as the case may be, Regulation No 1150/2000) and the
case-law of the Court of Justice show that, even where own
resources fail to be established, Member States are required to
pay default interest. In the present case, the contested amount of
own resources ought to have been entered in the accounts at
the latest two months after 18 November 1998, on the first
working day following the 19th of that month (in other words,
on 20 January 1999). Given that the German authorities only
made the entry on 31 October 2005, the Federal Republic of
Germany delayed the entry and is under an obligation to pay
default interest for the period of delay.

(1) OJ 1989 L 155, p. 1.
(2) OJ 2000 L 130, p. 1.

Action brought on 7 October 2008 — Commission of the
European Communities v French Republic

(Case C-443/08)

(2009/C 6/18)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt all the laws and regulations
necessary to correctly transpose Article 2(3), Article 2(4)
and Article 4(4) of Council Directive 1999/13/EC of
11 March 1999 on the limitation of emissions of volatile
organic compounds due to the use of organic solvents in
certain activities and installations (1) as regards the definition
of the concepts of ‘small installation’ and ‘substantial change’
and the obligations applying to existing installations, the
French Republic has failed to fulfil its obligations under that
directive;